Evaluating 20 Years of Regulation 1/2003: Are EU Antitrust Procedures -Fit for the Digital Age-?.

• Date: 01 January 2024
• Author: Massimiliano Kadar

577

EVALUATING 20 YEARS OF REGULATION 1/2003:

AREEU ANTITRUST PROCEDURES “FIT FOR

THEDIGITAL AGE”?

M K*

INTRODUCTION ......................................... 577

I. REGULATION 1/2003: MAIN CONTENT AND

INNOVATIONS COMPARED TO REGULATION 17 ......... 578

II. PREVIOUS COMMISSION REPORTS ASSESSING

THE FUNCTIONING OF REGULATION 1/2003 ............ 581

III. DIGITIZATION AND BEYOND: AN EVOLVING

ENFORCEMENT LANDSCAPE ......................... 582

IV. THE REGULATION 1/2003 EVALUATION EXERCISE:

RATIONALE AND MAIN AREAS OF FOCUS .............. 584

A. T C’ I P .............. 585

B. P R   P

 I   T P .............. 587

C. T C’ E P .............. 590

D. C   B NCA, C,

 O N L E A ..... 593

CONCLUSION ........................................... 594

INTRODUCTION

Regulation 1/20031 represented a revolutionary step in the European Union

antitrust enforcement landscape. Enforcement of Articles 101 and 102 of

1 Council Regulation 1/2003, 2003 O.J. (L 1) 1–25 [hereinafter Regulation 1/2003].

While for the sake of simplicity this text only refers to Regulation 1/2003, the ongoing

* Massimiliano Kadar is Deputy Head of Unit A1 (Antitrust policy and case support) at the

Directorate General for Competition of the European Commission (DG COMP). The author is

the project manager of the Regulation 1/2003 evaluation at DG COMP. The views expressed

in this article are the author’s own and may not necessarily represent those of the European

Commission. The author would like to thank Inge Bernaerts, Hubert Beuve-Mery, Marie-Louise

Ehlers-Defontaine, Maria Jaspers, Linsey McCallum, Sophie Moonen, Andreas Reindl, Konrad

Schumm, Professor Heike Schweitzer, Sophia Stephanou, Professor Richard Whish, and Paolo

Tomassi for their insightful comments on a previous version of this article. Any errors or incon-

sistencies remain the sole responsibility of the author.

578 A L J [Vol. 85

the Treaty on Functioning of the European Union (TFEU),2 which until then

had been mainly in the hands of the European Commission, became effec-

tively shared with National Competition Authorities (NCAs) and courts of

EU Member States. The so-called “notification system” for agreements was

replaced by a new regime based on self-assessment. A new array of powers

and procedures was introduced or codified, including the possibility for the

Commission to impose interim measures and make commitments binding.

The comprehensive modernization of the antitrust procedural framework

introduced by Regulation 1/2003 has generally been considered a success.

But almost 20 years have passed since its adoption. Business realities and

the enforcement landscape have inevitably changed, primarily due to the

digitization of the global economy. Recognizing this issue, in March 2022,

Executive Vice President (EVP) Margrethe Vestager announced that Regu-

lation 1/2003 would be subject to an evaluation process to assess whether

it is still “fit for the digital age,” considering the Commission’s intervening

enforcement experience.3 Notably, the Commission is assessing whether the

current procedural framework, which has remained unchanged for the past

two decades, still allows the Commission to intervene in an effective and

timely fashion, specifically taking into account the challenges brought about

by digitization, including the increased complexity of cases and larger inves-

tigative files. This article will briefly discuss the background, rationale, and

principal areas of focus of this evaluation.

I. REGULATION 1/2003: MAIN CONTENT AND INNOVATIONS

COMPARED TO REGULATION 17

Regulation 1/2003 became effective on May1, 2004, replacing the prior

procedural framework governing the application of EU antitrust rules estab-

lished by Regulation 17 of 6February 1962 (“Regulation 17”).4 In order to

promote effective and uniform enforcement of Articles 101 and 102 TFEU,5

Regulation 1/2003 introduced a number of important changes compared to

evaluation exercise also concerns Regulation 1/2003’s implementing act, Commission Regula-

tion 773/2004, 2004 O.J. (L 123) 18–24 [hereinafter Implementing Regulation]; see also EU

Antitrust Procedural Rules – Evaluation, E. C’ (June 30, 2022), competition-policy.

ec.europa.eu/public-consultations/2022-antitrust-procedural-rules_en.

2 Consolidated Version of the Treaty on the Functioning of the European Union arts. 101,

102, June 7, 2016, 2016 O.J. (C 202) 1 [hereinafter TFEU].

3 Margrethe Vestager, Exec. Vice President, Eur. Comm’n, Keynote Address of EVP

Vestager at the CRA Annual Conference: Competition and Regulation in Disrupted Times

(Mar. 31, 2022), ec.europa.eu/commission/presscorner/detail/en/SPEECH_22_2203.

4 EEC Council Regulation17, 1962 O.J. 13, 204–11 [hereinafter Regulation 17].

5 Regulation 1/2003, supra note 1, recital 1.